A constitution for the UK may be emerging, typically in the form of an official manual. But what if “We the people” were to begin from the popular end of the debate? Here, Andrew Blick reviews a brave book that seeks to initiate that debate; while below John Jackson enters a dissenting note.
Gordon, Richard, Repairing British Politics, Hart Publishing, 2010, £17.95
Though it would be easy to miss it the UK is in the process of developing a written constitution – of a sort. The Cabinet Office are currently drafting a document – under the mundane title of the “Cabinet Office manual” – which will set out the conventions and laws which it believes comprise what might be termed the “higher law” of the UK.
According to Gordon Brown, the published document will be the first stage of a process leading to a full “conversation” about the future of the UK constitution, involving all parties and thorough public consultation. It is possible to object to the first draft of the UK constitution being produced in this closed fashion, but if it leads to the promised wider discussion (subject of course to the outcome of the General Election), then this outcome would be desirable. If and when such a debate occurs, Richard Gordon’s Repairing British Politics will make a valuable contribution.
As Gordon notes, Brown’s programme of constitutional codification has some precedent. Oliver Cromwell was established as Lord Protector of the Commonwealth of England, Scotland and Ireland, by the “Instrument of Government” of 1653 (later modified by the “Humble Petition and Advice” of 1657). Critically, from the point of view of Gordon’s argument, it vested sovereignty in “the people assembled in Parliament”. This concept differs from what has become the established doctrine in the UK, that Parliament alone is sovereign, since it provides a specific role for ‘the people’ – that is, popular sovereignty.
In this work Gordon combines his expertise as a QC – specialising in administrative and public law and human rights – with an historical approach, to produce a powerful argument about the need for change in the UK constitution, and a set of proposals about what it should become.
Part 1 is a convincing attack, from a democratic perspective, on the concept and practice of parliamentary sovereignty which, as Gordon shows, has only a tenuous connection with popular sovereignty; has never received popular endorsement; and does not function properly even on its own terms. Moreover, while a written constitution, he argues, would produce “empowerment of the people”, “no written Constitution can co-exist with parliamentary sovereignty”. While a principle that Parliament can trump all other authority exists there is no prospect of a democratic codified constitution, as it would normally be understood. Gordon suggests a need to confront three questions, namely whether “we, as a people, [should] endorse the principle of a written constitution”; what its content should be; and “What process should be undertaken to answer these two questions”.
In part 2, Gordon puts forward his draft of a constitution founded in popular sovereignty. It is intended as “the first stage in a public debate rather than a series of suggested set-in-stone reforms”. Part 3 contains drafts of the Act of Parliament that would be necessary to bring about the changes, including provision for a referendum on whether a written constitution should be adopted; and, if the first referendum produces an affirmative answer, a second referendum on a specific proposed text.
Rather than dwell on the details of this book, I will simply state that it is informative and enjoyable to read, and fulfils its purpose well, in that it makes an effective case for a written constitution and could form a useful basis for discussions of what such an entity should comprise. I recommend it to anyone interested in the way we are governed, including those who (unlike myself) do not agree with its central arguments. What I will do is help begin the debate it seeks to stimulate.
The first concept that I think needs to be considered further is that of the “separation of powers”, the value of which is often held as axiomatic. Recognising the need for a judiciary and legislature that are not subordinate to the executive is not entirely the same as willing a separation of powers. The recent British Academy lecture by Dr. Mogens Hansen on 25 February highlighted the fact that this concept is never applied in full in any constitution. In his draft constitution, Gordon provides for members of the executive to be drawn from the legislature (though he allows for some exceptions to this rule) and to be accountable to it. This arrangement runs counter to the separation of powers principle, but nonetheless has much to commend it.
Similarly, House of Commons select committees have recently begun pre-appointment hearings for major public appointments, including judicial roles. This practice again contravenes the idea of separation of powers, but in my view has merit.
Second, while it is clearly important, Gordon gives excessive prominence to the issue of ensuring the financial probity of elected representatives. As he notes, when read in full, Magna Carta, while undoubtedly significant, is tilted towards addressing specific historical circumstances of 1215 rather than the eternal principles for which it is now celebrated. To treat the MPs’ (and peers’) expenses scandal as a first order constitutional issue on a par with such concerns as protecting human rights and reforming the electoral system runs the risk of seeming a similarly distorted outlook in the not-too-distant future.
Third, to focus on a particular interest of mine, I think the section of Gordon’s text dealing with the Prime Minister, ministers and the cabinet needs attention. Article 81 states, “Subject to this Constitution, executive power shall be vested in the Prime Minister, acting through Cabinet” and his articles 91-2 vest powers previous exercised under the Royal Prerogative (but in practice by ministers), including for treaty-making, war-making and recognition of foreign states, formally in the Prime Minister, again “acting through Cabinet”. The problem with these provisions is that they would strengthen the Prime Minister even more than now, since they would explicitly give him powers currently only exercised under convention. Surely it would be better to place “executive power” and prerogative powers specifically under collective cabinet control rather than allocate them to the Prime Minister acting through cabinet?
Finally, seemingly aware that he will be criticised for doing so, Gordon proposes that the monarchy should be retained, but made subject to the constitution. Retaining the monarchy is simply not compatible with adherence to the principle of popular sovereignty. Even if gender and faith discrimination is removed from the rules of succession, we will be left with a completely undemocratic institution which is neither directly nor indirectly elected. Moreover, it will be one which still possesses the power to intervene in party politics. Gordon’s article 80 states that the “Prime Minister…shall be a member of the House of Representatives who, in the Head of State’s opinion [emphasis added], will be able to form a government that has the confidence of a majority of the House of Representatives”. In circumstances where no single party has overall control in the lower chamber (which would become the norm under proportional representation, which Gordon supports), there may be more than one possible candidate for the premiership. The monarch will then enjoy a degree of discretion in whom to appoint that is unacceptable in a democracy.
This problem may shortly become apparent after the next general election; and is just one example of the difficulties of reconciling monarchy with democracy. Many other countries manage without one, and the UK could also. Indeed, there is a case to be made that the desire to protect and preserve the monarchy has been one reason for the persistence of the doctrine of parliamentary sovereignty that Gordon seeks to overturn. Can it be a coincidence that the only period of formal popular sovereignty in UK history came under the regime of Oliver Cromwell?
Dr Andrew Blick is Senior Research Fellow, Democratic Audit. He is author of ‘People Who Live in the Dark’ and ‘How to Go to War’ and the forthcoming ‘Premiership’ (with George Jones).
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